Part 2: Conservationists, scientists fear Fisheries Act changes

LARRY PYNN, Vancouver Sun06.07.2012

Otto Langer, a retired biologist who worked for the federal Fisheries Department for 32 years, believes the Conservative government’s plan to limit protection of fish habitat will result in a major setback to conservation efforts in Canada.Ian Lindsay
/ Vancouver Sun

The retired head of habitat assessment and planning for the federal Fisheries Department in B.C. and Yukon describes the Conservative government’s planned changes to the Fisheries Act as the biggest setback to conservation law in Canada in half a century.

And he takes it very personally.

“I feel I have wasted my lifetime, that I should have done something else,” says Langer, who now predicts a gradual decline in fish habitat if the changes take effect.

Through a massive package of proposed laws in Bill C-38, Ottawa plans to limit federal protection of fish habitat to activities resulting in serious harm to fish that are part of a commercial, sport or aboriginal fishery. Across the country, hundreds of scientists have condemned the change.

“It’s going to remove freshwater protection for most fishes in Canada, which can’t be a good thing,” says University of B.C. zoology department professor Eric Taylor, who also co-chairs a federal committee that advises the government on species at risk.

“Habitat is not just a place to live; it’s a place to breed, rest, avoid predators, get food.”

Taylor argues the Fisheries Department should be fighting for biodiversity. “They should have an interest in protecting Canada’s aquatic biodiversity — for all Canadians. They now seem to be abandoning that.”

Minister of Fisheries and Oceans Keith Ashfield has said the changes will focus federal protection efforts “where they are needed,” provide clearer and more efficient regulations, and create partnerships with provinces, aboriginal groups and conservation organizations.

He promised to provide better enforcement of the rules, and also to protect “ecologically significant areas,” such as sensitive spawning grounds or where the cumulative impact of development is a concern.

So-called minor works, such as cottage docks and irrigation ditches, will be identified and no longer require permits, said Ashfield, who refused to be interviewed for this article.

Critics consider the bill a regressive step that is certain to have serious impacts on fish.

First nations concerned

Margot Venton, a lawyer with the environmental watchdog group Ecojustice, says “minor works” are not mentioned in the proposed revisions.

Instead, the bill would create a framework through which protection for fish and fish habitat “can be suspended for any work, undertaking or activity” on any Canadian fisheries water, she says.

The Assembly of First Nations is also concerned that new regulations could limit opportunities for first nations to engage in the approval processes for major projects.

In contrast to those concerns, the business sector argues the planned changes to the Fisheries Act are needed to foster economic development — not just for mega-projects, such as Enbridge’s $5.5-billion Northern Gateway dual-pipeline project.

Northern Gateway would cross some 1,000 streams on its 1,177-kilometre route from Alberta to Kitimat on B.C.’s north coast. A federal panel is reviewing the Enbridge proposal.

John Winter, president of the B.C. Chamber of Commerce, says the new rules will benefit “anyone who uses the land,” be they small or big business.

He says the changes are long overdue, and Canada’s business sector is fed up with the discretionary powers of federal fisheries officers and biologists who protect fish habitat.

“It’s significant,” Winter says of their impact on the economy. “Impediments to growth — if there was a No. 1 culprit, it would be [the Department of Fisheries and Oceans], followed closely by local governments.”

The federal Fisheries Act was enacted in 1868 and amended in 1977 to protect fish habitat.

Section 35 makes it an offence to carry on any work or undertaking that results in harmful alteration, disruption or destruction of fish habitat, although it provides the minister with discretionary powers to allow destruction.

That sweeping level of protection would be eliminated under Bill C-38, the Conservatives’ Budget Implementation Bill, which has received second reading in the House of Commons.

The government would instead prohibit only “serious harm to fish that are part of a commercial, recreational or aboriginal fishery or fish that support such a fishery.”

Serious harm is defined as the “death of fish or any permanent alteration to, or destruction of, fish habitat.”

Provinces gain control

Bill C-38 also lays the groundwork for transferring greater responsibility for environmental assessments to the provinces – a concern to critics, given that B.C.’s Environmental Assessment Office has hardly ever rejected a project outright.

A case in point is Taseko Mines’ plan to develop its New Prosperity gold-copper deposits in the Chilcotin area southwest of Williams Lake, a project that would have destroyed Fish Lake, Little Fish Lake and portions of Fish Creek, including the loss of 90,000 rainbow trout, for a tailings impoundment area.

A provincial environmental review okayed the mine, saying the economic benefits, including an estimated annual payroll of $32 million, outweighed any environmental damage.

A federal review panel nixed the project due to “significant adverse environmental effects on fish and fish habitat, on navigation, on the current use of lands and resources for traditional purposes by first nations,” as well as adverse cumulative effects on grizzly bears in the south Chilcotin region.

A new federal hearing is underway into Taseko’s revised plan for the mine site.

Bill C-38 will also introduce time limits, which critics say will result in shoddy assessments on complex and environmentally challenging projects.

The government says the limits are needed to prevent projects from dragging on indefinitely.

They include: 45 days for the Canadian Environmental Assessment Agency to decide if an assessment is required, and up to two years for major reviews by the National Energy Board, with cabinet reserving the right to overturn decisions, including the Northern Gateway project.

“It’s part of a whole cultural change,” says UBC’s Eric Taylor.

“You get the impression Stephen Harper is the captain of a giant battleship and he’s just incrementally turning it to the right. It’s like he’s been chomping at the bit all those years in a minority government and now he can finally make Canada the way it should be.”

Two former Progressive Conservative fisheries ministers, John Fraser and Tom Siddon, have also expressed concerns over the federal plan.

He says the federal changes appear to take a risk-based approach that could reduce red tape for projects that do not pose a serious threat to fish habitat.

“You don’t treat every waterway the same way,” he says.

On the other hand, critical salmon habitat, such as the Adams River, would continue to receive protection, he says.

Lake does have concerns about the federal government downloading costs to the province, but says he will reserve final judgment until he sees the regulations that will implement the new laws.

Experience shows that habitat loss and degradation – from urban development, farming, resource extraction and hydroelectric dams – are the most serious threats to freshwater fish.

Among those fish that would suffer under the Fisheries Act changes are the Nooksack dace and Salish sucker, both endangered species and listed under the federal Species at Risk Act (SARA). They are found in Canada in only a few isolated streams in the Fraser Valley.

Neither are used in commercial, recreational or aboriginal fisheries.

“No one will ever fish for those things except some kid with a little pole on a summer afternoon,” Taylor says.

Canada became the first industrialized country in 1992 to ratify the United Nations Convention on Biological Diversity, an international treaty that responded, in part, to a global loss of aquatic biodiversity.

An Environment Canada website states: “A society that lives and develops as a part of nature, values the diversity of life, takes no more than can be replenished and leaves to future generations a nurturing and dynamic world, rich in its biodiversity.”

Protection under SARA kicks in only after a species is in trouble and lacks the broader proactive protection offered by the Fisheries Act for all fish species. The federal government also does not accept all the recommendations of Taylor’s advisory body, the Committee on the Status of Endangered Wildlife in Canada, for SARA listings — especially where there could be economic implications.

‘Big cracks’

Biologist Mike Pearson of Pearson Ecological in Agassiz helped write the recovery strategy for the Nooksack dace and Salish sucker.

“The changes will remove federal protection for a lot of what has been defined as fish habitat, and there is not much effective provincial legislation to fill the gap,” he says. “We’re just making big cracks for them to fall through.”

He warned it can take several years before Ottawa officially approves a species for listing under SARA and then comes up with a recovery plan that identifies and protects critical habitat. Fish are especially vulnerable because they can be harmed by pollutants entering a river far upstream of their habitat even if it’s protected.

For guidance on the fish-habitat issue, environmental groups frequently turn to Otto Langer, who blew the whistle on the planned federal changes after receiving a leaked government document last March.

Langer, a Richmond resident, retired in 2002 after 32 years with the federal Fisheries Department. He worked for the David Suzuki Foundation before leaving for health reasons, and continues to play a leading role in the assessment of regional projects with environmental risks.

As a young stream protection biologist, Langer prepared submissions to the government in 1976 on the need for federal protection of fish habitat – achieved through a Fisheries Act amendment in 1977 — after seeing habitat eroded in the lower Fraser River.

“Damn it, we got that amendment through,” he says, noting that B.C. was one of the provinces that unsuccessfully challenged the legislation in court. “I’m still surprised.”

Langer says he has watched a steady decline in the application and enforcement of the Fisheries Act over the past decade. Now, he argues, the Conservatives are about to deliver the final blow to fish habitat protection, something he’s fought for all his adult life.

The implications, he insists, are dire.

“You could alter habitat, disrupt it, run bulldozers in streams. I think it will be near impossible for a fisheries officer, a biologist, an expert witness to show serious harm.”

lpynn@vancouversun.com

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Part 2: Conservationists, scientists fear Fisheries Act changes

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